The Decree of the President of the Republic of Moldova on Holding a Consultative Republican Referendum – Unconstitutional

On 27 July 2017, the Constitutional Court delivered the Judgment on the constitutional review of the Decree of the President of the Republic of Moldova no. 105-VIII of 28 March 2017 on holding a consultative republican referendum on issues of national interest (Complaint no. 40a/2017).

Circumstances of the case

The case originated in a complaint lodged with the Court by a group of MPs of the Parliamentary Faction of the Liberal Party asking for a constitutional review of the Decree of the President of the Republic of Moldova no. 105-VIII of 28 March 2017 on holding a consultative republican referendum on issues of national interest.

According to Art. 1 of the Presidential Decree, the consultative referendum was to be held on 24 September 2017.

Art. 2 of the Decree provides for the following questions to be addressed at the consultative republican referendum:

“1. Would you be in favour of repealing the Law no. 235 of 3 October 2016 on the issuance of state bonds for enforcing by the Finance Ministry of payment obligations derived from state guarantees no. 807 of 17 November 2014 and no. 101 of 1 April 2015 (on covering the theft of the billion)?

2. Would you be in favour of giving the President additional constitutional powers to dissolve Parliament and organise early parliamentary elections?

3. Would you be in favour of decreasing the number of Members of Parliament from 101 to 71?

4. Would you be in favour of studying the course “The History of Moldova” in educational institutions?”

The authors of the complaint have mainly contended that the Decree of the President of the Republic of Moldova no. 105-VIII of 28 March 2017 is in breach of Art. 66.b, 72.3.b, 75, 141, 142 and 143 of the Constitution.

The complaint was examined by the Constitutional Court in the following composition:

Mr Tudor PANȚÎRU, President

Mr Aurel BĂIEŞU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Veaceslav ZAPOROJAN, judges.

Conclusions of the Court

A.General aspects on holding the referendum

Hearing the reasoning of the parties and examining the casefiles, the Court noted that in line with Article 2.1 of the Constitution, national sovereignty resides with the people of the Republic of Moldova, that shall exercise it directly and through its representative bodies in the ways provided for by Constitution.

The exercise of sovereignty by the people is carried out by their participation in elections and referenda. The referendum is provided at a constitutional level as a means for the people to enjoy the possibility to directly exercise national sovereignty, expressing their will on issues of general interest or that present a particular importance in the life of the state.

The Court noted that the recourse to a referendum necessarily implies the respect of the legal order as a whole.

In this regard, in its caselaw the Court underlined that it shall examine whether the conditions for the exercise of the initiative to hold a referendum are met and it shall oversee that it is not used as an instrument for other aims than that the framers meant when providing for the referendum, as an essential legal institution of the rule of law.

B.On the Presidential Decree on holding the referendum

The Court mentioned that the provisions of Art. 88.f of the Constitution grants to the President of the Republic of Moldova the power to ask the people to express their will on an issue of national interest.

The Court noted that on 28 March 2017, the President of the Republic of Moldova issued the Decree no.105-VIII on holding on 24 September 2017 a consultative republican referendum comprising four questions.

Subsequently, the Court examined separately the questions included in the Presidential Decree, i.e. whether they fall into the competence of the Head of State to be subject to a referendum, as well as whether they may be correlated between them based on their content and nature, so that as a whole there would be ensured the rule of law.

-On repealing a law

The Court observed that the first question relates to the repealing of the Law no. 235 of 3 October 2016 on the issuance of state bonds for enforcing by the Finance Ministry of payment obligations derived from state guarantees no. 807 of 17 November 2014 and no. 101 of 1 April 2015.

The Court held that the constitutional right of the President to call for a referendum does not confer him lawmaking competences. Adopting/repealing a law by referendum may be subject to a legislative referendumand may not be subject to a consultative referendum initiated by the President of the Republic of Moldova.

Also, the Court noted that it delivered the Decision of inadmissibility no. 77 of 12 October 2016 on this law, i.e. the acts of the Court are final and executory.

-On granting to the President of the Republic additional powers pertaining to the dissolution of Parliament, as well as on altering the number of MPs.

As with regards to this question, the Court further examined distinctly the issue on whether the President is entitled to subject to a referendum aspects involving amendments to the Constitution (a) and on instituting new grounds for Parliament dissolution (b).

a)Whether the President is entitled to subject to a referendum aspects involving amendments to the Constitution

The Court held that any aspect related to the amendments to the Constitution shall abide by the procedure governing the amendment of the Constitution, strictly determined by the Supreme Law.

The Court underscored that the subjects vested with the constitutional right to initiate the amendment of the Supreme Law are exhaustively enumerated in Art. 141.1 of the Constitution. According to the constitutional provision, the President of the Republic of Moldova is not vested with the right to initiate an amendment to the Constitution.

Concurrently, in its caselaw, the Court mentioned that when providing in Art. 88.f of the Constitution for the right of the President of the Republic to request the people to express their will on matters of national interest by way of referendum, the framers of the Constitution provided for the possibility of the President to address to the electorate only on major issues, that the nation may be faced with at a given moment, and not on approving or declining a law amending the Constitution (Judgment no. 57 of 3 November 1999).

Subsequently, the Court underlined that issues pertaining to the amendment of the Constitution may not be subject to a consultative referendum by the Head of State. In other words, this may imply granting implicitly to the President of the Republic the right to the initiative on amending the Constitution, which is in breach of Article 141 of the Supreme Law.

At the same time, referring to those contended by the representative of the President, within the sitting of the Court, that by the Decree of the President of the Republic of Moldova no. 930 of 22 March 1999 there was initiated the consultative referendum on changing the governing system – which is a constitutional matter – the Court held that prior to amendments brought to the Constitution by the Law no. 1115-XIV of 5 July 2000, the President of the Republic was a subject enjoying the right of initiative to amend the Constitution. [However,] following the amendments operated to Art. 141 of the Constitution by the Law no. 1115-XIV of 5 July 2000, the President does not enjoy this prerogative anymore. Subsequently, considering the express exclusion of the right of the President to initiate the amendment of the Constitution, the referendum of 1999 year is not relevant for present case.

Concurrently, examining the complaint, the Court observed that although Art.148 of the Electoral Code provides that the initiation of a referendum on the amendment of the Constitution is governed by Art. 141 of the Constitution, at the same time, the provisions of Art. 144.2 of the Code provide that the subjects enumerated in para. 1 – where the President of the Republic is also included – may initiate any type of referenda. In this regard, the Court found that the provisions of Art. 144.2 of the Electoral Code are in breach of Article 141 of the Constitution.

b)On instituting new grounds for Parliament dissolution

The Court underscored that Art. 85 of the Constitution provides exhaustively for the cases and grounds of Parliament dissolution prior to the expiry of its office – the impossibility to form a Government or a 3 months deadlock in adopting laws.

In its caselaw, the Court reiterated that the right of the President to dissolve the Parliament shall be seen as a balancing mechanism, not as one bringing upon imbalances of State powers and that would generate political crises.

The Court mentioned that the popular mandate in itself does not alter the constitutional competences of the Head of State and does not presume granting the discretionary power of dissolving the Parliament.

The Court underscored that cumulating existing specific cases of dissolution with new ones may be interpreted as granting the President the right to make of use the instrument of dissolving the Parliament as a tool for promoting party politics, in contradiction with his role of pouvoir neutre in the current parliamentary system.

This view is also shared by the Venice Commission, within its Opinion on the proposal by the President of the Republic to expand the powers of the President to dissolve Parliament, adopted at its 111th plenary session of 16-17 June 2017.

In the above mentioned Opinion, the Venice Commission underlined that conferring the President a discretionary power to dissolve the Parliament renders the other grounds listed in the proposal entirely superfluous. It could be even taken to mean that the general power of dissolution is not linked to the times of institutional crisis, but adds the possibility for the President to dissolve Parliament for purely political reasons – for instance, in the event s/he disagrees with a policy choice made by Parliament and wants new elections. Such an interpretation of the powers of the President to dissolve Parliament alters the neutral role of the President and turns him/her into a political player. This is not compatible with the logic of a parliamentary system.

The Court held that granting the President of the Republic enlarged and discretionary powers to dissolve Parliament does not ensure the coherence of constitutional matter in a parliamentary system where the powers of the President are limited and tends to obstruct the work of the legislative by generating constitutional crisis.

Moreover, the Court underscored as a matter of principle that any amendment concerning the powers of the President shall only produce effects for the office of the successor and may not affect the powers of the incumbent. This view is also shared by the Venice Commission in the Opinion mentioned supra.

-On studying history in educational institutions

As with regards to studying “The History of Moldova” in educational institutions the Court recalled that in its caselaw the scientific assessment of an issue – it being the field of academia and not that of politics – shall be undertaken by experts and scholars (Judgment of the Constitutional Court no. 36 of 5 December 2013).

The Court found that this matter pertains to research involving rules specific to scientific methods that rest only on proofs of historiographical analysis.

From the above reasons, the Court underscored that issues related to the scientific field cannot be politicised and cannot be subject to a political vote and/or to a popular vote.

-On formulating a number of questions within one referendum

The Court found that the questions proposed by the President of the referendum concern four distinct fields, related to repealing a law (1); granting the President the constitutional right to dissolve Parliament (2); decreasing the number of MPs (3); and studying the course “The history of Moldova” in educational institutions (4).

The Court reiterated that within one referendum no questions of different nature may be addressed, even though these questions are [written down] on distinct ballot papers.

In the same vein, Article 145.2 of the Electoral Code prohibits holding a republican referendum in the day of another republican referendum.

Considering that the formulated questions concern fields of different natures, with no intrinsic relationship, this situation amounts to holding simultaneously different referenda, thus circumventing the constitutional and legal prohibition in this regard.

-On the procedural aspects of holding the referendum

The Court mentioned that in line with Art. 66.b of the Constitution, it is the competence of the Parliament to declare a referendum.

The Court noted that when providing for the cited constitutional norm, the framers of the Constitution did not provide for the type of the referendum to be declared by Parliament. Concurrently, Art. 88.f of the Constitution only provides that the President of the Republic “may request the people to express their will on matters of national interest by way of referendum.”

Subsequently, underpinning the mentioned constitutional provisions, the Court held that the provisions of Art. 66.b concern all types of referendum.

Moreover, the Court found that according to Art. 150.2 and Art. 151 of the Electoral Code, the President initiates by a Decree a consultative national referendum setting the its date and the questions subject to the referendum, whilst Art. 150.1 provides that within six months of receiving proposals on initiating a referendum, Parliament shall adopt one of the following decrees: a) calling for the referendum within at least 60 days of the decree’s adoption; b) rejecting the proposal to hold a referendum, in case the latter is initiated by members of Parliament; c) on solving the issues addressed in the referendumwithout conducting the referendum.

The Court noted that the provisions of Art. 150.1 of the Electoral Code provide that the Parliament, by a decision, calls a referendum for all the types of proposals to initiate a referendum by the entitled subjects.

The Court mentioned that holding a referendum requires financial means. Subsequently, the Parliament is the only competent [authority] to allocate financial means from the State budget with the consent of the Government. In this regard, the authorities in charge of elections shall act in order to hold a referendum only following a Parliament decision.

Conclusions

Concluding the above mentioned, the Court held that the questions formulated by the Decree no. 105-VIII of 28 March 2017 exceed the constitutional powers of the President and subsequently cannot be subject to a consultative referendum initiated by the President of the Republic of Moldova.

The Court underscored that it is contrary to the spirit and letter of the Constitution for the President – “under the cover” of the phrase “issues of national interest” – to initiate a referendum that implies amending the Constitution or issues that pertain to a scientific assessment of the academia.

Additionally, the Court underscored that the questions proposed for the referendum concern totally distinct fields, which does not meet the requirement of form and content of the issue to be subject to the referendum (the validity exigency) and does not ensure for the voter [the possibility] to arrive to his/her sovereign decision in a flawless manner.

Considering the above reasoning, the Court held that when issuing the Decree no. 105-VIII of 28 March 2017, the President of the Republic of Moldova infringed upon Articles 2, 66.b and 141 of the Constitution.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court:

1.Declared admissible the complaint lodged by a group of MPs of the parliamentary faction of the Liberal Party;

2.Declared unconstitutional:

-The Decree of the President of the Republic of Moldova no. 105-VIII of 28 March 2017 on holding a consultative republican referendum on issues of national interest;

-Paragraph (2) of Article 144 of the Electoral Code no. 1381-XIII of 21 November 1997.

This judgment of the Constitutional Court of Moldova is final, cannot be subject to any appeal, shall be effective from the date of passing and shall be published in the Official Journal of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.